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Regulating farms with certainty

Our view: Offering farmers a 10-year exemption from water pollution regulations in exchange for voluntary cooperation is a risky idea

6:00 a.m. EDT, March 18, 2013

The concept behind the proposed Maryland Agriculture Certainty Program is sound. Farmers would voluntarily agree to meet relatively high standards for pollution runoff and hire third-party inspectors to verify the results. In return, they would be spared from new regulations for 10 years.

In a business that is fraught with uncertainty from droughts and floods, rising and falling commodity prices and boom or bust crop yields, the appeal of predictability is clear enough. The model is not unlike the discharge permit of some manufacturers or sewage treatment plants — a kind of contract between regulators and polluters.

But the bill currently being considered in the state Senate has raised a great many concerns — too many to believe any reasonable compromise can be achieved during this legislative session. Far better for it to be done correctly than hastily, particularly when so much is at stake, and that's especially true for farmers.

In trying to help, lawmakers might actually hurt the majority of farmers. For instance, should some farmers get a decade-long exemption from certain future pollution standards, it's entirely possible, even likely, that their peers will be required to do far more to offset that lack of participation somewhere down the road.

And the unintended consequences are not even restricted to farmers. Across the state, Marylanders are facing tougher water pollution standards. Communities are being forced to do more to control storm water runoff, reduce pollution, raise taxes and control growth.

It's all part of the U.S. Environmental Protection Agency-imposed Chesapeake Bay pollution diet (known as TMDL, for total maximum daily load) that primarily seeks to reduce nitrogen and phosphorus, the excess nutrients that are slowly strangling the nation's largest estuary. Agriculture plays a significant role in that effort, as it is the single largest source of pollution and sediment in the watershed.

The certainty bill has split the environmental community. The Chesapeake Bay Foundation endorses it and points to a similar measure that passed last year in Virginia and one under consideration in Delaware. Foundation officials argue that the standards that would be imposed on participating farmers are tough and based on what's expected by 2025. In essence, they point out, the effort speeds up the timetable for compliance by a decade.

But others in the environmental community are doubtful, particularly as new EPA standards are expected to be developed in just four years. There have also been serious questions raised about oversight, accountability and transparency, the certification of inspectors, and the lengthy timetable (even discharge permits are generally limited to five years).

Meanwhile, state officials are already in the midst of developing regulations that would allow farmers to trade pollution credits, which would also depend on meeting specific nutrient targets and providing independent verification. It would be far more prudent to wait and see how a certainty program might dovetail with that.

That lawmakers are anxious to rush to the aid of farmers is no surprise. Witness the recent decision in the House of Delegates to earmark $300,000 in the state budget to potentially help offset the legal bills of Berlin chicken farmers Alan and Kristin Hudson, who were sued by the Waterkeeper Alliance for allegedly polluting a local waterway. The Hudsons won the case, and they and co-defendant Perdue Farms are seeking $3 million in legal fees from the plaintiffs.

Supporters argue that the state played a role in the matter (the University of Maryland Environmental Law Clinic represented the Waterkeeper Alliance), but the precedent of requiring taxpayers to foot the bill for a private civil suit is outrageous. Either the litigation was frivolous — in which case Waterkeeper Alliance should pay the damages (as provided for under law and pending in federal court) — or it was not and nobody should be reimbursed. Lawmakers who feel strongly that some injustice was perpetrated ought to pull out their own checkbooks and donate to the Hudsons' defense fund.

For too long, the agriculture community has grown accustomed to the pampering of voluntary pollution restrictions and government grants and loans — the more carrot, less stick approach. Any other small business owner would envy the generosity, yet many farmers continue to regard themselves as victims of a war on rural Maryland.

That's not to suggest that Annapolis ought to be tougher on or even indifferent to farmers or farming. Far from it. But what's needed is a balanced approach that considers not just the benefits to be offered farmers but the sacrifices expected from the rest of us. If the General Assembly wants to restore the Chesapeake Bay, it's not just tough love but smart love that's required. That much is certain.